Chapter 9
Compliance with Federal and State Mandates

Summary

After developing a policy statement, a company may wish to offer supervisory training to those closest to the workforce, including information about drugs and alcohol, drug paraphernalia, signs and symptoms of usage, and performance deterioration signals. Training enables supervisors to properly establish reasonable suspicion before referring employees for testing and aids in the implementation of a drug and alcohol Employers must be aware of several federal and state rules, regulations, and laws when implementing a drug and alcohol-free workplace program, particularly when the program includes testing. Not all laws will be relevant to all employers, but it is important to determine which ones are relevant to your particular situation.

Some of the more common mandates that affect employers and the ways in which they conduct their programs include:

• Title VII of the Civil Rights Act of 1964;

• State drug testing laws;

• Americans With Disabilities Act of 1990;

• State Workers’ Compensation laws;

• Federal Drug-Free Workplace Act of 1988;

• U.S. Department of Defense regulations;

• U.S. Department of Transportation regulations.

Title VII of the Civil Rights Act of 1964

Challenges to drug- and alcohol-free workplace programs under Title VII are not common or likely, but an employer must be sensitive to the impact of the program upon groups who are protected under this law. It is important that a program and its procedures not provide even the perception, let alone the practice, of treating any employee differently because of race, sex, religion or national origin. The program must be consistently enforced with employees.

State Drug Testing Laws

Some states have enacted drug testing statutes. Some of the laws restrict testing, require specific procedures to be followed, restrict sanctions that can be imposed on employees who violate policies, and authorize private lawsuits against employers, laboratories and medical facilities that violate the laws. It is imperative that employers determine what laws (if any) exist in the states in which they conduct business and ensure compliance with the laws. The Institute for a Drug-Free Workplace in Washinton, D. C. publishes a guide to state and federal drug testing laws. Information can also be obtained from the U.S. Department of Labor in Washington, D.C., and the federal Center for Substance Abuse Prevention in Rockville, Maryland.

Americans With Disabilities Act of 1990

The Americans With Disabilities Act of 1990 (ADA) is a comprehensive civil rights bill that applies to all employers with 15 or more employees.

ADA prohibits employers from discriminating in employment decisions against a “qualified individual with a disability... because of his disability.” A “qualified individual with a disability” does not include any applicant or employee who is currently abusing drugs or alcohol. The Act specifically permits employers to adopt drug testing and drug-free workplace policies, and to prohibit employees from using illegal drugs. However, “qualified individuals” may include persons who have successfully completed rehabilitation programs, or are in a program and are no longer using illegal drugs.

Purported violation of the ADA is one of the most common types of legal challenges facing employers in administering drug- and alcohol-free workplace programs. It is, therefore, extremely important that employers fully familiarize themselves with this law, which is available on the Internet.

State Workers' Compensation Laws

States vary as to the legal impact on Workers’ Compensation claims when drug and/or alcohol are determined to be contributing factors. Some states have laws that cause an injured worker to become ineligible for Workers’ Compensation benefits when an employee’s injury is caused by the willful and serious misconduct of the injured employee or by his intoxication.

Many states have also enacted laws that provide financial discounts on Workers’ Compensation insurance premiums to employers who maintain drug- and alcohol-free workplace programs.

It is important for employers to determine what, if any, Workers’ Compensation laws exist in the states in which they conduct business before implementing a drug and alcohol-free workplace program.

Federal Drug-Free Work Place Act of 1988

The Federal Drug-Free Workplace Act of 1988 became law on March 18, 1989. The law requires that all federal contractors who receive $100,000 or more, as well as all federal grant recipients, must comply with its requirements. Drug testing is not required under this law, but other provisions of a drug-free workplace are. The following guidelines give the minimum requirements:

• Publish a policy statement prohibiting unlawful use, possession, manufacture, or distribution of controlled substances in the workplace;

• Notify employees of said prohibition and the penalty for violating it;

• Establish a drug-free awareness program;

• Provide employees engaged in a contract with a copy of the policy statement;

• Notify employees that compliance with the policy statement is a condition of employment;

• Require (in writing in your policy)employees to notify the employer within five days if they are convicted of a criminal drug statute violation occurring in the workplace; additionally, notify the contracting agency of such violations, and impose a sanction or require completion of a drug assistance program by a convicted employee;

• Make a good-faith effort to maintain a drug-free workplace through these provisions.

If you are a federal government contractor or grantee, you may wish to contact the agency that awarded your contract or grant to determine whether it has additional requirements.

U.S. Department of Defense Regulations

The U.S. Department of Defense (DOD) has issued rules and regulations that obligates defense contractors to establish and maintain a drug-free workplace program for all personnel who work in “sensitive jobs.”

General guidelines of the DOD regulations include:

• Contractor, in concert with the contracting agency, is responsible for determining which jobs are “sensitive” by analyzing the type of work performed and the duties of the various jobs and their relationship to security.

• Drug testing is required for individuals in “sensitive” jobs.

• Drug testing is permitted in circumstances such as 1) reasonable suspicion, 2) post-accident, and 3) as part of rehabilitation and is required in pre-employment situations.

• In unionized settings wherein contract clauses conflict with testing regulation, drug testing must be discussed in the next round of contract negotiations.

U.S. Department of Transportation Regulations

The U.S. Department of Transportation (DOT) has issued rules and regulations that require the implementation of drug- and alcohol-free workplaces, including drug and alcohol testing, by employers in the transportation industry. The rules and regulations are applicable to employers regulated by one or more of the following transportation regulators:

• Federal Aviation Administration (FAA);

• Federal Highway Administration (FHWA);

• Federal Railway Administration (FRA);

• United States Coast Guard;

• Urban Mass Transportation Administration;

• Research and Special Programs Administration (pipelines).

Specific requirements vary from administration to administration, but basic guidelines under the DOT regulations include:

• Circumstances under which testing is required:

• pre-employment;
• reasonable suspicion;
• random;
• post accident; and
• return-to-duty and follow up.

• DOT has established strict testing procedures that must be followed. All drug testing must be conducted in laboratories certified by the U.S. Department of Health and Human Services.

• All positive drug tests must be reviewed by a Medical Review Officer (MRO), and employees must be afforded an opportunity to consult with the MRO prior to the test result being reported to the employer.

• Five classes (and only these five classes) of drugs must be tested for:
• marijuana;
• cocaine;
• amphetamines;
• opiates; and
• phencyclidine (PCP).

• Cut-off levels established by DOT must be used in drug testing.

• Alcohol testing of employees must be conducted using only devices and equipment approved by DOT and in accordance with procedures established by DOT. Alcohol testing of applicants is not required.

• Depending on the agency, employees must receive drug awareness training, including information about the company’s drug- and alcohol-free workplace program. Employees must also be provided awareness information about alcohol misuse.

• All supervisors must receive a minimum of 60 minutes of training in drug abuse detection, documentation and intervention, and an additional 60 minutes of similar training about alcohol abuse.

• Employees determined to have drug and/or alcohol abuse problems must be referred by the employer to a Substance Abuse Professional (SAP) for evaluation. Before the abusing employee can be returned to duty, a recommendation of “return to duty” must be made by the SAP.

Employers who are subject to any of these mandates would be prudent to thoroughly research the specifics of the relevant mandates to ensure that they develop a comprehensive drug and alcohol-free workplace program that adheres precisely to the requirements.